Friday, February 18, 2011

Potential Relief After an Eviction Default Judgment

If you are a tenant and you fear that your landlord is going to lock you out of your apartment soon it is probably because you failed to realize the importance of all those court documents mailed to you (or posted on your door).

Once your landlord gives you a 3-day notice to pay or quit, you must pay the rent within that 3-day period or eviction proceedings in the court will commence. Once these court proceedings commence, it could mean that you will be on the hook for your landlord's attorney's fees.

If you pay your rent within that 3-day time frame, you are free; the eviction process cannot begin in the courts. If you pay your rent after the 3-day time frame and your landlord accepts the rent (meaning: cashes your check) the eviction process in the court ends!

If you turn in a rent check after the 3-day notice expires, and your landlord takes the check, make sure it is cashed! Otherwise, just because the landlord took the check, it doesn't mean you can ignore any court paperwork that you are subsequently served with.

What if there is already a judgment against me?
If you have received notice of a judgment against you, meaning you are officially being evicted, this could be a default judgment. The court or court clerk will enter a default judgment against you if you did not answer the court paperwork (complaint) served on you, and if you did not appear at the scheduled court hearing. The court looks at your failure to answer and appear as not contesting the eviction proceeding.

These are typical ways to set aside a default judgement:
1. A motion asking the court for relief based on "mistake, inadvertence, surprise, or excusable neglect." CCP473(b).
2. A motion indicating the judgment is void. This is usually where the court originally lacked jurisdiction to issue a judgment on the matter.
3. A motion asking the court for relief due to lack of actual notice. CCP473.5

Before filing a motion to set aside the default judgment, a stay of execution of judgment should be filed. A court can grant a stay based on its discretion (CCP 918) or due to extreme hardship on the tenant (CCP 1179).

Even if you win your motion, your landlord was still the prevailing party initially which means you would still need to pay attorney's fees.

These are motions that an attorney should help you with, you should not try to do it on your own! Another alternative is to just speak with your landlord and come to an agreement which could give you more time to move out. Sometimes landlords will allow you to stay in your apartment (and refrain from calling the Sheriff to lock you out) if you just pay all the rent owed and attorney's fees.

The material contained on this website should not be construed as legal advice on any subject matter and is not a substitute for legal counseling. No recipient of content from this site, clients or otherwise, should act or refrain from acting based on information at this site. The content of this website comes “as-is” and its accuracy, completeness, or applicability is not guaranteed. Law Office of Veronica R. Guzman expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this site. Any transmission of information through Law Office of Veronica R. Guzman website is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should not rely upon any transmission of e-mail messages to the Law Office of Veronica R. Guzman through this website to create an attorney-client relationship.

1 comment:

  1. Specialties: Help Stop Your Eviction specializes in stopping the eviction process in California.
    There are a various about of methods available to fight your eviction but making sure you are doing
    the right ones is the most important. We…
    if you need more informacon check Eviction process california